You’ve heard the nightmare divorce stories:
• The divorces that go on and on for years with no end in sight, all the while costing tens of thousands of dollars;
• The divorces that end with ruinous alimony and child support payments, with parent-time schedules that all but ensure that the children will be nothing more that strangers with a slight resemblance to those paying child support;
• The divorces that leave you living like an impoverished college student: residing in hovels no cleaner or larger than dorm rooms and subsisting on ramen noodles.
And who gets the blame? Quite often the lawyer (or the ex-spouse’s lawyer or both lawyers). And rightly so! In every one of the horror stories you’ve heard, there is usually a divorce lawyer lurking behind (sometimes in front of) the curtain pulling the strings.
But as much as you want to deny it, you know deep down that good divorce attorneys are out there. These are the attorneys who play an important role in helping you navigate the murky and treacherous waters of divorce. These are the attorneys who play key roles in negotiating divorce settlements in a fair and equitable way. They are the attorneys you want but don’t know
The difficulty is finding an experienced divorce attorney who will always keep your best interest in mind and who will do what is necessary to ensure that you and your ex-spouse move on with your lives to the extent possible.
1. Find a good divorce lawyer, or at the very least save yourself from a bad one.
• How hard is it to reach your lawyer? Imagine how much harder it’s going to be reaching your lawyer when you have some important things on your mind when it’s pretty difficult reaching an attorney to give him business!
• How organized is the office? If there are piles of paperwork for others to see, how seriously is the attorney taking your confidentiality?
• Did your lawyer give you a contract explaining all the fees, rights and obligations associated with your representation? Always ask to put your representation agreement in writing.
• How busy is your attorney? While an experience attorney will be a great asset in your divorce, an overworked attorney can lead to serious and costly mistakes.
2. Do not hand over all the power over your case to the judge. Do not default to the court deciding your case, if you avoid it.
The less you let the judges and commissioners decide on your case, the more control over your case you have. Even if the court decides in your favor, it is not very likely that you will like the outcome of that decision. Why? More often than not (and as long as your spouse isn’t crazy, malicious, or both), you could have just as easily come to the same conclusion all on your own through mediation or negotiation.
Besides the obvious costs associated with litigation, consider the collateral costs of going through a bitter litigation process: future mental therapy costs for your children, awkward and uncomfortable strain at your child’s graduation or wedding, and/or the cost of losing control over your own life and letting a total stranger decide your fate.
A good lawyer can save you thousands, even tens of thousands (seriously) of dollars in needless litigation, if you choose wisely.
3. Watch out for promises of results or outcomes. This is the easiest way to find if a lawyer is lying to you. If an attorney guarantees an outcome, it is highly probable that the attorney is lying to you. Besides, lawyers are not allowed to guarantee outcomes. While a lawyer will be able to tell you how strong your position is, he or she will cannot predict or control the future, and thus cannot tell you how a judge is going to rule, nor can you put much stock in an attorney claiming he or she has “pull” or influence in a certain court.
4. A mediator is no substitute for a lawyer. Believe it. If you don’t believe, do your homework.
Bad mediators try to sell their services by insinuating that a lawyer’s advice and guidance is unnecessary and duplicative. Why get a lawyer when the mediator can help you, eh? Mediators’ help is limited to helping you reach a settlement. Mediators seek settlements, period. Not necessarily fair settlements, and not necessarily settlements that are fair to you. They can’t. Mediators have to be neutral, which means that can’t give you advice, and they don’t look out for you and your interests.
A mediator’s job is to help and encourage parties to come to an agreement. A mediator generally will not know or will not care if your settlement is fair to you, nor do they always have to legal training to know if your agreement properly retains your rights. Good mediators will insist that you seek legal advice prior to mediation. Make sure you get legal advice before signing a binding agreement, whether it’s a divorce settlement or an employment contract.
5. Retainer agreement vs. Flat Fees. For the uninitiated, a retainer is a large deposit that is placed into the lawyer’s trust account the lawyer bills against. At the end of each billing period the lawyer will send a statement for how many hours billed that month, and what amount was taken from the retainer account. Essentially this is a blank check that gives the lawyer access to your deposit account.
Flat fee agreements, on the other hand are agreements to pay up front for legal work. Generally, you won’t be asked to pay more than you’ve already paid, unless you require a significant departure you’re your agreement. While retainer deposits technically belong to you until they are earned, you will likely have to replenish your retainer deposit over and over again until the case is finished. While under the flat fee agreement, you will know exactly how much a portion of your case will cost you upfront.
How much does that toaster really cost? Let’s say a toaster costs $10 used, $75 new, but you end up paying $400 to your lawyer to fight for the stupid toaster…was it worth paying $400 for that $75 toaster? Certainly there are personal possessions that are of significant sentimental value to you that cannot be quantified in dollar amounts and are well worth the cost to fight over them, but a vast majority of your personal belongings can be replaced for far less than the cost to fight over them. Before you start getting attached to your belongings, take a long hard look at whether holding on will allow you to reach a final resolution and move on with your life.
7. What are your priorities (and what are they worth to you in hard dollars and cents)? Your priorities may change throughout the course of your divorce. Make sure that your attorney understands what is most important to you. If your priorities change, it is of utmost importance that your attorney is informed. Unless you tell your lawyer what’s going on, he/she will continue on the same trajectory they were following. This stresses the importance of communication between you and your attorney. And remember: the best way to determine what’s really important to you is to ask yourself how much you’ll pay or sacrifice to get it or keep it.
8. Be flexible! It could be a position, a personal item, or a condition. The more you insist on something, the more important it will seem to you from the perspective of the opposing party. It’s a very easy mistake to make and a sure fire way to expose a weakness. As discussed in #7 above, evaluating what is important to you—and being flexible in the way you get it—can be the difference between a costly frustrating process and a successful one.
9. Communicate sufficiently with your lawyer and insist that your lawyer communicate sufficiently with you. Your divorce is a point in which much of what you have built over your lifetime and your future hangs in the balance, so be actively involved with your divorce rather than handing your lawyer a blank check and letting your lawyer deal with the important issues in your life. You need a lawyer who will keep you informed of the goings on in your case. Being actively involved in your case will help you maintain control over your case, reduce the unknowns (and thus reduce anxiety due to the unknown), and help you make informed decisions about your divorce and ultimately your future.
10. Learn as much as you can. Being armed with knowledge makes a huge difference in how you conduct yourself, understand and formulate your position, and keep control in your divorce. This website is a great place to start. And the State of Utah has a wealth of information available through the local law libraries (located at some court houses and the local university law school library), local divorce meet up groups (many can be found at: https://divorcesupport.meetup.com/cities/us/ut/salt_lake_city/), and/or the internet.
Utah Family Law, LC | 801-466-9277 | divorceutah.com